Citation NR: 9736029
Decision Date: 10/27/97 Archive Date: 11/04/97
DOCKET NO. 95-29 359 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for headaches.
2. Entitlement to service connection for right ear hearing
loss.
3. Entitlement to an increased (compensable) rating for
degenerative changes of the lumbar spine.
4. Entitlement to an increased (compensable) rating for left
ear hearing loss.
5. Entitlement to a increased (compensable) rating for
tinnitus.
6. Entitlement to an increased rating for chondromalacia of
the left knee, currently evaluated as 10 percent disabling.
7. Entitlement to an increased rating for chondromalacia of
the right knee, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas A. Yeager, Associate Counsel
INTRODUCTION
Service medical records and administrative records indicate
that the veteran had active naval service from approximately
October 1988 through April 1993. However, only that portion
of the veteran’s active duty from March 1992 through April
1993 has been verified by the veteran’s Certificate of
Release or Discharge from Active Duty (DD Form 214). See
38 C.F.R. § 3.203 (1996).
This appeal arises from a September 1994 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio, which denied service connection for
headaches, hypertension and right ear hearing loss; granted
service connection for degenerative changes of the lumbar
spine, left ear hearing loss, and tinnitus, rating each
condition as noncompensably disabling; and granted service
connection for chondromalacia of the left knee and right
knee, assigning a 10 percent disability evaluation for each
knee.
The veteran’s March 1995 notice of disagreement and July 1995
substantive appeal also perfected the issue of service
connection for hypertension for appellate review. However,
the veteran withdrew this issue from appellate status at his
hearing before the undersigned Member of the Board in June
1997.
REMAND
During his hearing before the Board in June 1997, the veteran
was advised that medical evidence had been received by the RO
and referred to the Board which had potential bearing on some
or all of the issues on appeal. The evidence has not
previously been considered by the RO (the agency of original
jurisdiction) in its decision, and has not been discussed in
a Supplemental Statement of the Case. See 38 C.F.R.
§ 19.37(b) (1996). The Board was advised by the veteran’s
representative that the veteran would not waive consideration
of the new evidence by the RO. Accordingly, the evidence
must be referred to the RO for review and preparation of a
Supplemental Statement of the Case with respect to the issues
described above. See 38 C.F.R. § 20.1304(c) (1996); see also
38 C.F.R. §§ 19.9, 19.31 (1996).
The new medical evidence referred to above includes the
results of a December 1996 VA audiological evaluation. The
report of this evaluation indicates that the veteran’s right
ear speech recognition score is now less than 94 percent and
right ear auditory thresholds for the 1000, 2000, 3000, and
4000 Hz frequencies are greater than 26 decibels.
Accordingly, the veteran’s right ear auditory acuity
currently appears to fall within the standards prescribed by
regulation for consideration as “impaired hearing” recognized
as a disability for VA B B38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 3.385 (1996). In cases involving hearing loss,
“when audiometric test results at a veteran’s separation from
service do not meet the regulatory requirements for
establishing a ‘disability’ at that time, he or she may
nevertheless establish service connection for a current
hearing disability by submitting evidence that the current
disability is causally related to service.” Hensley v. Brown,
5 Vet. App. 155 (1993); see also Godfrey v. Derwinski, 2 Vet.
App. 352, 356 (1992) [even where there is no evidence of the
veteran’s hearing disability until many years after
separation from service, “[i]f evidence should sufficiently
demonstrate a medical relationship between the veteran’s in-
service exposure to loud noise and his current disability, it
would follow that the veteran incurred an injury in
service”]. Although the new evidence has not yet been
considered by the RO, the Board finds that review of the
record by a medical professional is warranted for the purpose
of expressing an opinion as to whether any medical
relationship may exist between the veteran’s service as a
Navy aircrewman and his current right ear hearing loss. For
the sake of efficiency, the same examiner also should be
asked to express an opinion as to the relationship, if any,
between the veteran’s military service and any current
tinnitus.
The Board further notes that the veteran was diagnosed as
suffering from migraine vascular headaches during a
compensation and pension examination at the VA Medical Center
(VAMC) in Cleveland, Ohio, in July 1994. The veteran stated
to the examiner that the headaches began during service in
1992, and had persisted to the present. He reported that he
had taken Midrin (a prescription drug designed to reduce
stimuli leading to vascular headaches by constricting dilated
cranial and cerebral arterioles, including also a mild
sedative and acetaminophen as an analgesic) for the
condition, but that it was ineffective. The report of
medical history prepared by the veteran prior to his release
from active duty in April 1993 indicates that he was
suffering from frequent or severe headaches at that time.
The accompanying physician’s summary notes a history of
migraine-type headaches; however the medical examination
report characterizes the veteran’s neurologic status as
normal and service medical records do not show treatment for
headaches. During his June 1997 hearing, the veteran
testified that he had been treated for this condition at a
hospital in Bellefontaine, Ohio, approximately six months
after his separation from active duty, and that he had seen
private physicians on two later occasions (but within a year
of his release from active duty) for treatment. In view of
the possibly conflicting evidence above, the Board finds that
obtaining any records of private medical treatment for
headaches could be of substantial value in determining the
probable date of origin and etiology of the veteran’s
currently diagnosed migraine-type condition.
In light of all the above, to obtain additional development
and ensure full compliance with due process requirements,
this case is REMANDED to the RO for completion of the
following actions:
1. The RO should make another attempt
through official channels to secure the
service administrative records (i.e., DD
Form 214) documenting the veteran’s
active naval service prior to March 1992,
and, at the same time, should request
that his file be reviewed for any
additional service medical records which
may be present.
2. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for headaches
since April 1993. After securing any
necessary release(s), the RO should
obtain these records. If the RO cannot
obtain these records, it should notify
the veteran and his representative that
it has been unable to do so, explain the
reason(s) for any failure, request that
the veteran obtain and provide the
records, and allow him a reasonable
period of time to do so.
3. After completing the development
above, the veteran should be examined by
an otolaryngologist. All necessary tests
and studies, to include further
audiological evaluation, if indicated,
should be obtained. Following a complete
review of the claims folder,
specifically, the veteran’s in- and post-
service medical records, the examiner
should offer an opinion as to whether it
is at least as likely as not that 1) an
etiological relationship exists between
the veteran’s current right ear hearing
loss and his exposure to noise as an
aircrewman during his active military
service; and 2) that an etiological
relationship exists between any current
tinnitus and the veteran’s noise exposure
in service. The complete rationale for
the opinion, reflecting a review of the
veteran’s claims folder and identifying
the medical data and the medical
principles relied upon, should be set
forth in a typewritten report.
4. Following receipt of the written
opinion described above, it should be
reviewed by the RO to ensure compliance
with all herein-stated requirements. If
any requirements have not been met, the
report must be returned to the provider
as inadequate, along with the claims
folder, with instructions for its proper
completion.
5. After completing all development
required above to the extent possible,
the RO should again review the record on
the basis of all pertinent evidence of
record (including all the evidence that
has been associated with the claims file
since the issuance of the most recent
Statement of the Case in June 1995), and
all applicable laws, regulations, and
case law. If any benefit sought on
appeal, for which a notice of
disagreement has been filed, remains
denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, in accordance with current appellate procedures,
the case should be returned to the Board for further review.
The purpose of this REMAND is to obtain additional
development and provide due process of law, and the Board
does not intimate any opinion as to the merits of the case,
either favorable or unfavorable, at this time. The veteran
is free to submit any additional evidence he desires to have
considered on appeal, subject to applicable regulatory
provisions, including 38 C.F.R. § 20.1304 (1996); however, no
action is required of the veteran until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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